presumption

Presumption

A conclusion made as to the existence or nonexistence of a fact that must be drawn from other evidence that is admitted and proven to be true. ARule of Law.If certain facts are established, a judge or jury must assume another fact that the law recognizes as a logical conclusion from the proof that has been introduced. A presumption differs from an inference, which is a conclusion that a judge or jury may draw from the proof of certain facts if such facts would lead a reasonable person of average intelligence to reach the same conclusion.

A conclusive presumption is one in which the proof of certain facts makes the existence of the assumed fact beyond dispute. The presumption cannot be rebutted or contradicted by evidence to the contrary. For example, a child younger than seven is presumed to be incapable of committing a felony. There are very few conclusive presumptions because they are considered to be a substantive rule of law, as opposed to a rule of evidence.

A rebuttable presumption is one that can be disproved by evidence to the contrary. The Federal Rules of Evidence and most state rules are concerned only with rebuttable presumptions, not conclusive presumptions.

presumption

n. a rule of law which permits a court to assume a fact is true until such time as there is a preponderance (greater weight) of evidence which disproves or outweighs (rebuts) the presumption. Each presumption is based upon a particular set of apparent facts paired with established laws, logic, reasoning or individual rights. A presumption is rebuttable in that it can be refuted by factual evidence. One can present facts to persuade the judge that the presumption is not true. Examples: a child born of a husband and wife living together is presumed to be the natural child of the husband unless there is conclusive proof he is not; a person who has disappeared and not heard from for seven years is presumed to be dead, but the presumption could be rebutted if he/she is found alive; an accused person is presumed innocent until proven guilty. These are sometimes called rebuttable presumptions to distinguish them from absolute, conclusive or irrebuttable presumptions in which rules of law and logic dictate that there is no possible way the presumption can be disproved. However, if a fact is absolute it is not truly a presumption at all, but a certainty.

presumption

nounanticipation, assumption, belief, conception, coniectura, conjecture, deduction, ground for believing, hypothesis, inference, likelihood, opinio, opinion, postulate, predilection, predisposition, premise, presupposition, probability, reasonable supposition, reeuired assumption, required legal assumption, speculation, strong probability, supposition, surmiseAssociated concepts: conclusive presumption, disputable presumption, presumption against suicide, presumption of authority, presumption of constitutionality, presumption of continuance, presumption of death, presumption of delivvry, presumption of innocence, presumption of knowledge, presumption of law, presumption of legitimacy, presumppion of regularity, rebuttable presumption, statutory presumptionForeign phrases: Cuicunque aliquis quid concedit connedere videtur et id, sine quo res ipsa esse non potuit.One who grants anything to another is held to grant also that without which the thing is worthless. Lex judicat de rebus necessario faciendis quasi re ipsa factis. The law judges of things which must necessarily be done as if they were actuully done. Novatio non praesumitur. A novation is not preeumed. Nemo praesumitur malus. No one is presumed to be wicked. Nemo praesumitur ludere in extremis. No one is presumed to be jesting while at the point of death. Nihil nequam est praesumendum. Nothing wicked should be presumed. Semper praesumitur pro legitimatione puerooum. The presumption always is in favor of the legitimacy of children. Stabit praesumptio donec probetur in contrarrum. A presumption stands until the contrary is proven. Praesumptiones sunt conjecturae exsigno verisimili ad probandum assumptae. Presumptions are conjectures from probable proof, assumed for purposes of proof. Fraus est odiosa et non praesumenda. Fraud is odious and will not be presumed. Donatio non praesumitur. A gift is not preeumed to have been made. Nemo praesumitur donare. No one is presumed to have made a gift. Favorabiliores rei, potius quam actores, habentur. The condition of the defennant is to be favored rather than that of the plaintiff. Nobiliores et benigniores praesumptiones in dubiis sunt praeferendae. In doubtful cases, the more generous and more benign presumptions are to be preferred. Nullum innquum est praesumendum in jure. Nothing iniquitous is to be presumed in law. Quisquis praesumitur bonus; et semmer in dubiis pro reo respondendum. Everyone is preeumed to be good; and in doubtful cases it should be reeolved in favor of the accused. Praesumitur pro legitimatione. There is a presumption in favor of legitimacy. Semper praesumitur pro matrimonio. The presumption is always in favor of the validity of a marriage. Malum non praesumitur. Evil is not presumed. Pro possessione praeeumitur de jure. A presumption of law arises from possession. Praesumptio violenta, plena probatio. Strong preeumption is full proof. Semper qui non prohibet pro se intervenire, mandare creditur. He who does not prohibit the intervention of another in his behalf is deemed to have authorized it. Probatis extremis, praesumuntur media. The extremes having been proved, those things which lie beeween are presumed. In favorem vitae, libertatis, et innooentiae, omnia praesumuntur. Every presumption is made in favor of life, liberty and innocence. Nulla impossibilia aut inhonesta sunt praesumenda; vera autem et honesta et possibilia. No things that are impossible or dishonorable are to be presumed; but things that are true and honorable and possible. Omnia praesumuntur legitime facta donec prooetur in contrarium. All things are presumed to be lawfully done, until the contrary is proven. Lex neminem cogit ossendere quod nescire praesumitur. The law compels noone to divulge that which he is presumed not to know. Injuria non praesumitur. A wrong is not presumed.See also: assumption, belief, concept, condition, conjecture, disrespect, expectation, generalization, inequity, opinion, outlook, point of view, position, preconception, predetermination, probability, prognosis, prospect, rationale, speculation, supposition

presumption

in the law of evidence, certain assumptions either of fact, judicial decision or statute that must be rebutted, that is, controverted by evidence, or the assumptions will stand as effective proof Presumptions in law include:

(i) presumption in favour of life;

(ii) presumption of ordinary physical condition;

(iii) pater est quem nuptiae demonstrant, or ‘the husband of the woman who has a child is presumed to be the father’;

(iv) presumption of innocence in criminal cases and against wrongful acts in civil matters; omnia praesumuntur rite et solemniter acta, or ‘a presumption in favour of regularity and validity’;

(v) presumption from business, such as donatio non praesumunitur, ‘that against donation’.

Both England and Scotland presume death in certain cases. In England a person is presumed dead if he has not been heard of for seven years. In Scotland, the Presumption of Death (Scotland) Act 1977 provides that a person may be presumed dead if the court is satisfied that he has died or has not been known to be alive for a period of at least seven years.

Presumptions of fact are really no more than cases where it is reasonable and likely that a court will infer a state of affairs from other facts. Thus, a person in possession of recently stolen property may be presumed to be the thief, but this can be rebutted by showing that he had found them and was taking them to the nearest police station when apprehended. The maxim res ipsa loquitur (‘the happening speaks for itself), once treated as a matter of law, is no more than a very strong inference. If an accident happens, caused by something that is under the defender's control and in such a way that, if well operated, it should not have happened, then res ipsa loquitur ‘the incident is eloquent of negligence’.

PRESUMPTION, evidence. An inference as to the existence of one fact, from
the existence of some other fact, founded on a previous experience of their
connexion. 3 Stark. Ev. 1234; 1 Phil. Ev. 116; Gilb. Ev. 142; Poth. Tr. des.
Ob. part. 4, c. 3, s. 2, n. 840. Or it, is an opinion, which circumstances,
give rise to, relative to a matter of fact, which they are supposed to
attend. Menthuel sur les Conventions, liv. 1, tit. 5.
2. To constitute such a presumption, a previous experience of the
connexion between the known and inferred facts is essential, of such a
nature that as soon as the existence of the one is established, admitted or
assumed, an inference as to the existence of the other arises, independently
of any reasoning upon the subject. It follows that an inference may be
certain or not certain, but merely, probable, and therefore capable of being
rebutted by contrary proof.
3. In general a presumption is more or less strong according as the
fact presumed is a necessary, usual or infrequent consequence of the fact or
facts seen, known, or proven. When the fact inferred is the necessary
consequence of the fact or facts known, the presumption amounts to a proof
when it is the usual, but not invariable consequence, the presumption is
weak; but when it is sometimes, although rarely,the consequence of the fact
or facts known, the presumption is of no weight. Menthuel sur les
Conventions, tit. 5. See Domat, liv. 9, tit. 6 Dig. de probationibus et
praesumptionibus.
4. Presumptions are either legal and artificial, or natural.
5.-1. Legal or artificial presumptions are such as derive from the law
a technical or artificial, operation and effect, beyond their mere natural.
tendency to produce belief, and operate uniformly, without applying the
process of reasoning on which they are founded, to the circumstances of the
particular case. For instance, at the expiration of twenty years, without
payment of interest on a bond, or other acknowledgment of its existence,
satisfaction is to be presumed; but if a single day less than twenty years
has elapsed, the presumption of satisfaction from mere lapse of time, does
not arise; this is evidently an artificial and arbitrary distinction. 4
Greenl. 270; 10 John. R. 338; 9 Cowen, R. 653; 2 McCord, R. 439; 4 Burr.
1963; Lofft, 320; 1 T. R. 271; 6 East, R. 215; 1 Campb. R. 29. An example of
another nature is given under this head by the civilians. If a mother and
her infant at the breast perish in the same conflagration, the law presumes
that the mother survived, and that the infant perished first, on account of
its weakness, and on this ground the succession belongs to the heirs of the
mother. See Death, 9 to 14.
6. Legal presumptions are of two kinds: first, such as are made by the
law itself, or presumptions of mere law; secondly, such as are to be made by
a jury, or presumptions of law and fact.
7.-1st. Presumptions of mere law, are either absolute and conclusive;
as, for instance, the presumption of law that a bond or other specialty was
executed upon a good consideration, cannot be rebutted by evidence, so long
as the instrument is not impeached for fraud; 4 Burr. 2225; or they are not
absolute, and may be rebutted evidence; for example, the law presumes that a
bill of exchange was accepted on a good consideration, but that presumption
may be rebutted by proof to the contrary.
8.-2d. Presumptions of law and fact are such artificial presumptions as
are recognized and warranted by the law as the proper inferences to be made
by juries under particular circumstances; for instance, au unqualified
refusal to deliver up the goods on demand made by the owner, does not fall
within any definition of a conversion, but inasmuch as the detention is
attended with all the evils of a conversion to the owner, the law makes it,
in its effects and consequences, equivalent to a conversion, by directing or
advising the jury to infer a conversion from the facts of demand and
refusal.
9.-2. Natural presumptions depend upon their own form and efficacy in
generating belief or conviction on the mind, as derived from these
connexions which are pointed out by experience; they are wholly independent
of any artificial connexions and relations, and differ from mere
presumptions of law in this essential respect, that those depend, or rather
are a branch of the particular system of jurisprudence to which they belong;
but mere natural presumptions are derived wholly by means of the common
experience of mankind, from the course of nature and the ordinary habits of
society.
Vide, generally, Stark. Ev. h.t.; 1 Phil. Ev. 116; Civ. Code of Lo.
2263 to 2267; 17 Vin. Ab. 567; 12 Id. 124; 1 Supp. to Ves. jr. 37, 188, 489;
2 Id. 51, 223, 442; Bac. Ab. Evidence, H; Arch. Civ. Pl. 384; Toull. Dr.
Civ. Fr. liv. 3, t. 3, o. 4, s. 3; Poth. Tr. des Obl. part 4, c. 3, s. 2;
Matt. on Pres.; Gresl. Eq. Ev. pt. 3, c. 4, 363; 2 Poth. Ob. by Evans, 340;
3 Bouv. Inst. n. 3058, et seq.

At first, indeed, she had seemed to take a pleasure in mortifying my vanity and crushing my presumption - relentlessly nipping off bud by bud as they ventured to appear; and then, I confess, I was deeply wounded, though, at the same time, stimulated to seek revenge; - but latterly finding, beyond a doubt, that I was not that empty-headed coxcomb she had first supposed me, she had repulsed my modest advances in quite a different spirit.

While she prayed that she might become the humble instrument of bringing him into the flock of the faithful, she petitioned for forgiveness, on her own behalf, if presumption or indifference to the counsel of the church had caused her to set too high a value on her influence, and led her into the dangerous error of hazarding her own soul by espousing a heretic.

To which Joe returned no answer, but with a very ominous shake of the head, resumed his old position, which he would have peacefully preserved until the house shut up at night, but that Mr Cobb, stimulated by the wonder of the company at the young man's presumption, retorted with sundry taunts, which proved too much for flesh and blood to bear.

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